Use of the Common Law

Subject: Law
Pages: 4
Words: 959
Reading time:
4 min
Study level: College

The common law in the United States traces its origin to England in the Great Britain. The common law came into being when the Normans conquered England and legal systems were installed. The common law was put in place to take consideration of the local environment of the crime and the criminal under prosecution (Neubauer, 1979). Common law came into widespread use in America before the civil war and was popular in the northern states. The lines along which the courts made their decisions where redefined. These principles of administering criminal cases were later adopted by the southern states in the decade after the war (Schweber, 2004).

The criminal justice system can apply several forms of law in order to give the justice is being sought by either the authorities or a defendant. The constitutional law is made by the legislature, and cannot be changed or amended by any other institution. Although the courts of law have the power to interpret the constitutional criminal law, only the legislature can alter or amend the law. However, this constitutional law is supplemented by the common law. Unlike the constitutional law, the common law can be altered or interpreted by the courts of law. The common law is often created by the courts themselves. The common law is constituted by consideration of the society’s values, traditional doctrines of law, and the perspectives of professional members of the justice system (Eisenberg, 1988). A judge in a criminal court is supposed to decide on which of the three considerations is to be taken in priority when applying the common law. The judge is said to be the law finder in such cases since he looks for the best form of the law and applies it accordingly (Eisenberg, 1988). The common law is necessary as a complementary law to the constitutional law and its application and formulation by the courts is limited. In addition, the common law is created at the time it is applied. The common law is applied when the constitutional law does not give enough guidance or definition to make a satisfactory ruling in the court process. Thus, the common law enriches the existing legal regulations, and helps formulate laws that can be strictly applied in certain trials and special situations. On the other hand, some legal experts argue that the common law may compromise the integrity of the constitutional law (Eisenberg, 1988). In application of the common law, there is a likelihood of complete breach of the established legal guidance by the constitution. However, the court system is always expected to desist from making a decision that is not objective. Application of the common law should be on a universal basis for it to make a well-balanced influence on a ruling.

In criminal cases, the judge may apply the common law by referring to previous trials, which had similar situations as the trials currently before the court. The application of the common law is limited to the necessary area only. Furthermore, the law applies only to the extent required to give a satisfactory ruling that resolves the conflict between the defendant and the state (Neubauer, 1979). The common law adds to the flexibility of then old constitutional laws, which may not be the best for the criminal case in question. In this regard, the common law helps the old laws adapt to new applications in the criminal justice system. Although the common law is used in arbitration of difficult cases, the constitutional law always makes the basis for any ruling by a criminal court. Any law that is enacted by the legislature is cannot be opposed by another body or individual, but the common law is applied with caution to avoid controversy. When applying the common law, the courts are not required to formulate a new law but are guided to finding the law by consideration of universal practices. Rulings on matters such as admissibility of evidence, extent of damages, and the gravity of aggravation remain primarily under the jurisdiction of the common law. Such aspects of criminal trial procedure are very difficult to put under the jurisdiction of the constitutional law without major disparities.

Although rulings made based on the common law are as valid as those decisions made under the constitutional law, the validity of the common law is subject to nullification by a higher criminal court. In addition, rulings based on the common law are likely to be challenged in an appeal in a higher court (Meyer & Grant, 2003). The defense counsel and the defendant may argue that the bench in the previous court was not in order to use a certain finding of the common law. The common law is known to interfere with the normal procedure and regulations of court process especially in criminal juvenile trials. The court may find and use the common law to rule on whether the defendant is fit to stand trial on the grounds of maturity, age, gravity of the crime, and the situation in which the crime was committed (Meyer & Grant, 2003).

In my opinion, the use common law should be limited to crimes of lesser significance. The constitutional law should be able to govern cases of significant gravity to avoid misjudgments and misrepresentations of the law, which could lead to serious ramifications. This is because the common law has a great probability of being compromised by personal feelings and beliefs of the court officials. Furthermore, the defendant and the defense counsel are not allowed to take an active part in the creation of the common law. However, the common law cannot be completely abolished from the criminal judicial system. Discarding the common law would make some of the criminal trials hard to conclude on a fair basis


Eisenberg, M. A. (1988). The nature of the common law. Cambridge, Mass.: Harvard University Press.

Meyer, J., & Grant, D. R. (2003). The courts in our criminal justice system. Upper Saddle River, N.J.: Prentice Hall.

Neubauer, D. W. (1979). America’s courts and the criminal justice system. North Scituate, Mass.: Duxbury Press.

Schweber, H. (2004). The creation of American Common Law, 1850-1880: politics, technology, and the development of American common law in the nineteenth century. Cambridge: Cambridge University Press.